Some Democrats are sounding an early alarm on the prospect of reforming the Senate’s filibuster rule in 2025 if they keep control of the White House and Senate and win a House majority, setting the stage for a contentious debate over how far the party should go to respond to the Supreme Court’s overturning of abortion rights.
Vice President Harris put filibuster reform back in the spotlight this week when she told Wisconsin Public Radio that she would support a carve-out of the Senate’s filibuster rule to codify Roe v. Wade, the 1973 Supreme Court decision that established the right to abortion.
Some Democratic senators say that while they support the goal of passing legislation to protect abortion rights, they’re leery of blowing a hole in the filibuster rule that Republicans warn would be used to pass conservative priorities, such as a national voter ID law, through the Senate with only simple majorities.
“We should approach it very carefully because what goes around comes around. That’s one of the few permanent rules of the United States Senate,” said Sen. Jack Reed (D-R.I.), who was elected to the Senate in 1997 and has seen complete control of Washington shift from party to party over his career.
Reed said Democrats lowered the threshold for approving district and circuit court judges in 2013 after Republicans blocked qualified nominees to the D.C. Circuit Court of Appeals but later paid a price when Republicans then reduced the threshold for approving Supreme Court justices, which enabled them to establish a 6-3 conservative majority on the high court.
“We said, ‘Let’s reduce it to 50 [votes] for just circuit and district judges.’ And when the Republicans took over, they said, ‘Let’s do it for Supreme Court justices, too.’ And I think it’s really affected the quality of the court."
“Before, [with] 60 votes, you had to [find] someone really qualified and more to the center” to confirm a nominee to the Supreme Court, he noted.
“I think it would be good to have a national abortion [law] to protect the reproductive freedom of women, and I think we should try to get it, but I don’t think the first procedure would be to change the rules of the Senate,” Reed said.
Sen. John Hickenlooper (D-Colo.) said he would prefer to first try to cobble together 60 votes in the Senate to pass legislation protecting women’s access to reproductive health care before rewriting the Senate’s filibuster rule.
“Reproductive freedom is a right that women should have everywhere. The surest way to ensure that, which makes it much, much more durable, is to get 60 votes, and I think, having talked to Republicans, I think there’s a reasonable chance we could do that. So the first effort would be to go and pass it, get it done with 60 votes,” he said.
“I have actually gone and talked to a couple Republican senators just to sound them out. They’re cautious, but I think people would be surprised. Again, if we get 60 votes, it becomes more durable,” Hickenlooper said of codifying Roe v. Wade without changing the Senate’s rules.
The Colorado senator warned that lowering the threshold for passing legislation through the Senate to a simple majority could lead to so many sudden reversals of law that it would undermine national stability.
“If it becomes a pendulum that swings one way and then back the other — one way, back the other — that harms everybody. Again, that’s why 60 votes really kind of nails it down and says this is the law of the land,” he said.
Sen. Patty Murray (D-Wash.), the Senate’s most senior Democrat and an outspoken advocate for defending women’s reproductive freedom, stopped short of endorsing Harris’s call for filibuster reform.
“I’m looking at it,” she told The Hill on Wednesday.
Other Democrats, however, are eager to have a debate over reforming rules next year if they have control of Congress and the White House.
“Sign me up for an honest-to-goodness conversation about reforming the filibuster beyond one or two [issues], voting rights and reproductive rights. I think we’ve allowed the filibuster rule to eat the business of the Senate,” said Senate Democratic Whip Dick Durbin (Ill.). “We’ve reached the point now where we’re doing nothing. We’re reporting every three months that we didn’t shut down the government, a big source of pride."
“If we’re going to be a functioning legislature, we’ve got to change some fundamentals,” he said.
The 60-vote threshold for most legislation has forced Democrats and Republicans to cooperate on major bills, such as legislation addressing gun violence in 2022 and a $1 trillion bipartisan infrastructure bill in 2021.
The two biggest Democratic proponents for keeping the filibuster intact have been Sens. Kyrsten Sinema (Ariz.) and Joe Manchin (W.Va.), who both became independents after Senate Majority Leader Chuck Schumer (D-N.Y.) tried to carve out an exception to the filibuster to pass voting rights legislation in January 2022.
Sinema and Manchin were the only two Democrats to vote to protect the filibuster nearly two years ago, and both came under heavy criticism from the party’s base for doing so.
Both senators on Wednesday strongly criticized Harris's call to eliminate the filibuster to reestablish the protections of Roe v. Wade.
Republicans and institutionalists who favor preserving the Senate’s character worry that the retirement of Sinema and Manchin at the end of December will leave little resistance for liberals who want to curtail the filibuster.
But one Democratic senator who requested anonymity told The Hill on Wednesday that there are other old-school Democrats who would be willing to take their places to block another attempt to water down the filibuster rule.
“The minute you change it for one thing, you change it for everything,” the senator said, arguing it’s a fallacy to claim that the filibuster would only be “carved out” for specific issues.
“It’s just a question of who’s going to [step up]” to object to lowering the threshold for passing bills, the lawmaker said. “Somebody will. I think so. ... I have always believed that there are four or five people who didn’t have to say anything because Manchin or Sinema were there.”
Schumer told reporters Tuesday that Democrats would debate filibuster reform next year if they remain in the majority and declined to say whether he personally supports carving out an exception for abortion rights legislation.
The Democratic leader told reporters at the Democratic National Convention in Chicago that he would support making another attempt at amending the filibuster rule to allow voting rights and campaign finance legislation to pass with a simple majority if Democrats control the White House and both branches of Congress.
